Earlier this year, bookseller Waterstone's was reported to have become the first employer in the UK to sack a member of staff because of comments he made about the company on his online diary, or blog. Joe Gordon occasionally mentioned his workplace of 11 years in his musings and even more occasionally would moan in his journal after a bad day at work.
When Waterstone's discovered his comments it suspended him immediately and, following a disciplinary hearing, dismissed him for gross misconduct saying he had brought the company into disrepute. Although Gordon is appealing against the decision to dismiss him, the case raises the question of the extent to which employers can discipline employees for deeds done in cyberspace.
All companies whose employees use computers and the internet need to have a communications policy that lets staff know exactly what they can and cannot do with computers, and how they can make use of their access to the internet both during and after working hours. It should be clear whether any personal use is allowed, where it is allowed and what limitations are placed on it.
The employer must tell its staff if it intends to monitor their use of the company's systems, explaining how and why this is being done. Employers need to tell their employees very clearly that misuse of their equipment can lead to disciplinary action.
Clear guidance needed
Employees need to appreciate that their computer footprints are easily tracked and they should not put anything into cyberspace that they would not be happy for their employer to see.
The Waterstone's case is also a helpful reminder to employers that if they want to discipline employees for activities outside their working hours, they need to have given clear guidance to their staff about the type of activity, which - even if carried on outside work, in the employees' own time, on their own equipment - they would view as unacceptable.
In the absence of a clear policy covering unacceptable use, an employer hoping to take action against a member of staff for blogging would have to show that the employee has breached one of the implied terms of their employment contract, such as the duty of fidelity, confidentiality, or perhaps trust and confidence.
An employer hoping to take disciplinary action against an employee on such grounds would find its position strengthened if it could point to a clear communications policy and training programme already in place. Staff could then not feign surprise if a disciplinary case were brought against them.
Heed statutory procedures
Any employer minded to take such action against a member of staff should also remember that it needs to be careful the disciplinary action taken complies not only with its own internal policies, but also with the new statutory dispute resolution procedures.
If an employee is sacked and subsequently wins a case of unfair dismissal, a failure to follow the statutory procedures could result in an employment tribunal increasing any compensation.
If the employer does decide that disciplinary action is necessary for a cyberspace offence, they must ensure that the punishment fits the crime. This is especially important if the company is considering sacking the employee.
The employer should consider carefully issues such as whether the employee knew that they were doing something wrong, their previous disciplinary record and length of service.
Naturally, any employer considering taking disciplinary action against someone for blogg- ing would also need to take account of the broader commercial implications of any decisions it makes, such as any potential damage to staff morale and its public reputation.
It is vital to inform employees about the damage careless use of the computer systems can cause, not only to avoid embarrassment for employees but also to avoid putting employers at risk of claims from third parties.
A clear communications policy and training are the twin pillars on which employers can build a sound understanding of the dangers of using the internet, as well as ensuring they can defend any disciplinary claims against employees who blog too far.
Emma Grossmith and Jane Moorman are lawyers in the employment group at Pinsent Masons